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Deterrence is Through Prosecution, Not Through Death Sentence

On 5th May, 2017 the Supreme Court upheld the High Court judgement giving death penalty to the four accused in the ‘Nirbhaya’ case ie the brutal gang rape and murder of Jyoti Singh on December 16, 2012. The trial and conviction of the guilty in a time bound manner within four and a half years, is a welcome step in the context of the frequent denials of justice to victims of sexual assault.

However the sentence of death awarded by the lower courts and confirmed by the Supreme Court and welcomed by many is not a cause for celebration. PUDR wishes to record it's dissent on the death sentence awarded to the four accused.At this moment we want to reiterate that death penalty is not just barbaric but is not even a deterrent. Execution of Billa and Ranga in the high profile rape and murder case of siblings Geeta and Sanjay Chopra in 1982, or that of Dhananjoy Chatterjeein 2004 for the rape and murder of Hetal Parekh have not in any way acted as deterrents; if they had we would neither have the Nirbhaya case or rape and murder as an every day reality before us.

The course of trials and punishments in similar cases continue to be discriminatory and arbitrary, influenced by the social profile of the victims/ survivors, and of the accused. In comparison to the Nirbhaya case the Priyadarshini Mattoo case took fourteen years to decide, involved acquittal by the Sessions Court and finally resulted in a life sentence. The investigation, trial and punishment were all influenced by the accused being the son of a highly placed police officer. In the case of gang rape of five months pregnant Bilkis Bano and murder of 14 members of her family including her three years old daughter during the 2002 Gujarat carnage, the recent HC verdict underlines the social and political prejudices at work at every level. It took two years to get an FIR filed, fifteen years to secure a HC conviction, the accused have been out on parole several times during the trial giving them ample opportunity to intimidate and interfere, the case has had to be shifted from Gujarat to Maharashtra High Court. What is needed is to ensure even handed justice to all sexual assault victims and survivors by addressing these biases. Thorough investigation, a fair and time bound trial in all cases can act as a deterrent rather than the death penalty. In fact harsher punishment makes both of these less likely.

The Courts, including the apex court have repeatedly displayed a tendency to award death penalty to and make an example of perpetrators belonging to the most wretched sections of society, quite often to assuage a so-called “collective conscience” which is primarily masculinist, upper caste Hindu, urban and middle class. Investigations too are coloured by this bias. The kind of miscarriage of justice that can be the result is most apparent in the execution of Dhananjoy Chatterjee case which has since been shown to be fraught with anomalies. Given the fraught history of implementation of death penalty, Courts should desist from awarding rather than justifying death penalty while summarily dismissing social conditions as in this case. However on the contrary the Criminal Law amendment on sexual assault in introducing death penalty on the statute books has in fact even undone the 'rarest of rare' doctrine for award of death sentence, paving the way for Courts to summararily award death sentence in cases of rape and murder.

The Criminal Law Amendment of 2013 made the punishments for sexual assault more severe. However this change in the statute books has not had the intended deterrent impact. Despite the amendment and the High Court verdict of death penalty in Nirbhaya's case in March 2013, not only has there been an exponential increase in number of reported cases, but more significantly, the rate of conviction has actually decreased since. In Delhi in 2014 the conviction rate in rape cases was 34.5%, in 2015 it was down to 29.37%. In real figures too the convictions fell from 747 out of 2166 cases in 2014, to 645 out of 2199 in 2015. More stringent punishments clearly don’t result in either deterrence of crime or ensuring justice.

The Justice Verma Committee report did not recommend death penalty for rape despite the overwhelming popular demand. What it did recommend wasthe inclusion of marital rape, the debarring of politicians facing trial in cases of sexual assault from contesting elections, holding senior police and defence officers accountable for custodial rapes by those under their command. Recognising that crime and punishment were about power, and justice in cases of sexual assault was not possible without addressing social relations of gender, class, caste and community, the commission tried to fix restraints on those wielding power within the family and the state. However while passing the Bill, Parliament rejected all three of these recommendations, but introduced death penalty instead.By doing so the Parliament lost an opportunity to enact a more inclusive rape law which could increase the possibility of justice for all victims and survivors . The signal omissions have worked against women from politically and socially disadvantaged classes and communities who are not only the most vulnerable but also the least likely to get justice, and worked to protect certain groups of perpetrators.

The death penalty has been brought in instead as a supposed panacea. PUDR appeals to the courts and to people that the presence of the death penalty as the highest punishment in cases of sexual assault resulting in death should not lead to a knee jerk reaction as even the existing law allows for graded punishments. We would do well to remember that the fundamentally discriminatory nature of convictions under the death penalty finally works against the larger interests of ensuring justice for all women in all cases of rape irrespective of the social location of the perpetrators. In the absence of such equal access to justice for victims and accused, the applause in Nirbhaya’s case can be nothing more than a cathartic moment – a ritual cleansing of the collective conscience of a society that continuously perpetrates violence against women and then lets the many guilty off while penalising a few.

PUDR demands:

Complete abolition of the death penalty from all statute books.

Immediate commutation of sentences of all death row prisoners.

Stipulating a reasonable period of incarceration for ‘life imprisonment’.